Case Note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate’s Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

Conservation servitudes in South Africa

Small and Medium Enterprises (SMEs) play a significant role in the economy of developing countries. Although SMEs contribute to economic growth, they still struggle with access to finance and cash flow constraints. The coronavirus (COVID-19) pandemic worsened this situation, making it necessary for countries to develop rescue regimes suitable for financially distressed SMEs. Focusing on Nigeria and Kenya – which represent the largest economies in West Africa and East Africa respectively – this paper critically sheds light on the socio-legal challenges posed by extant insolvency law regimes in both countries and their unsuitability for driving SME rescue. As a conversation starter in the African context, the authors identify transplanted concepts and structures which make SME rescue a futility, in the light of local circumstances, while proposing solutions tailored to the social milieu of both countries.

Informing the regulatory framework on water and sanitation in Southern Africa: The emerging governance framework accompanying SDG 6

At least 40% of the people in the Southern African Development Community (SADC) region do not have access to safe water and sanitation, rendering them vulnerable to prolonged conflicts and catastrophes, including exposure to water-borne diseases, other pandemics, poverty and human suffering. Although several international and African regional treaties support the human rights to water and sanitation, the ability of the SADC regulatory framework to give effect to these rights is concerning. In fact, available literature on the SADC’s ability to meaningfully realise these rights is fragmented and scant. This article examines theoretically a novel governance approach to the implementation of Sustainable Goal 6 of the United Nations 2030 Agenda. The article argues that the coercion through regional ‘goal setting’ may provide a conclusive, regional response to the continuing development of water and sanitation rights in the SADC region.

Case Note: Locus standi to institute a private prosecution of environmental offences in South Africa: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

In Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd, in the first ever private prosecution under section 33 of the National Environmental Management Act, British Petroleum (BP) was prosecuted and convicted for constructing filling stations without the necessary authorisation. The judgment deals mostly with the issue of locus standi to institute a private prosecution for environmental offences. The purpose of this note is to highlight the issues that emerge from the judgment. The note also discusses the role that could be played by the National Director of Public Prosecutions should they decide to take over a private prosecution instituted under section 33 of NEMA.

Vertically-challenged? Interrogating intergovernmental coordination in Kenya’s municipal solid waste management (MSWM) for sustainability

The concept of environmental integration offers a viable paradigm for realisation of sustainability through incorporation of environmental protection considerations in policy and legislation. Pursuing optimal environmental integration between various levels of governance – a concept known as vertical environmental integration (VEI) – is contingent on effective and adequate intergovernmental coordination. Using municipal solid waste management (MSWM) as a reference case, this paper explores the pursuit of VEI through intergovernmental coordination in Kenya. The paper argues that the prospects of entrenching VEI are undermined by inadequate and incongruent intergovernmental coordination mechanisms and strategies as well as by the lack of clarity in distribution of regulatory responsibilities in MSWM between the national and county levels of government. This is despite the adoption of a transformative Constitution in 2010 with a focus on devolution that emphasises coordinated and consultative relationships between the two levels of government. Lessons from South Africa offer prospects for improving intergovernmental coordination to achieve sustainability in MSWM.

Growing threats to environmental human rights defenders: The latest SLAPP suit developments in South Africa

Human rights defenders’ lives, activism, and livelihoods are under threat globally. This is a particular reality for those working to protect land and natural resources. This article examines one of the forms in which environmental activists are being targeted in South Africa, namely the abuse of litigation processes to silence dissent, referred to as Strategic Litigation Against Public Participation (SLAPP suits). This article examines the development of SLAPP suits in South Africa and the impact that they have on the environmental sector and environmental rights. It then discusses some of the latest developments in SLAPP suits locally, including how in recent years, in addition to the more traditional defamation-style SLAPP suit, SLAPP suits have started to take new forms such as costs proceedings and allegations of intellectual property infringement. Lastly, this article explores possible responses to SLAPP suits, concluding that serious consideration needs to be given to anti-SLAPP legislation, the use of the special plea mechanism, and the opportunities for enhanced advocacy and solidarity action that SLAPP suits provide.